Synopsis

Claimant's motion for reconsideration of his prior motions to compel discovery was
denied as no demand for discovery was served. Claimant's motion was also denied to the extent
it sought depositions of non-party witnesses and the assignment of counsel.

Decision

Claimant moves for reconsideration of several prior motions in which he sought to compel
discovery and secure the depositions of certain non-party witnesses (Motion Nos. M-75887;

M-77168; M-77169; M-77488 and M-76948). He also requests the assignment of counsel.

Claimant's prior motions to compel discovery were denied because he failed to first serve
a discovery demand. Claimant has now twice been advised that "[a] necessary prerequisite to a
motion to compel discovery is the service of a demand" (Weems v State of New York, Claim No.
115306; Motion No. M-77488 [Ct Cl, March 10, 2010], Collins J, unreported; Weems v State of
New York, Claim No. 115306; Motion Nos. M-77168, M-77169 [Ct Cl, January 15, 2010], Collins,
J, unreported). A motion is not a demand. The claimant is again advised that he should first serve
a demand for the production of discovery on the Office of the Attorney General before moving to
compel discovery (see CPLR 3120).

Claimant's request for the depositions of non-party witnesses has also been twice denied
because the claimant failed to establish that the testimony sought was both material and necessary
to the prosecution of his claim (Weems v State of New York, Claim No. 115306, Motion No.

Claimant's request for the assignment of counsel is denied. CPLR 1102 grants the Court
discretion to assign an attorney in its order permitting a person to proceed as a poor person. CPLR
1101 requires, inter alia, that an application for poor person status be supported by an affidavit
setting forth the amount and sources of the moving party's income and assets and that he or she is
unable to pay the costs, fees, and expenses necessary to prosecute or defend the action. In support
of the instant application, claimant failed to set forth the amount of his income and assets and that
he is unable to pay the costs, fees and expenses necessary to prosecute the action.

Moreover, in Matter of Smiley (36 NY2d 433 [1975]) the Court of Appeals held that there
is no constitutional or statutory requirement that indigents be assigned private counsel in civil
litigation. In so holding, the Court recognized that unlike a defendant in a criminal proceeding, most
civil litigants are not facing a "risk of loss of liberty or grievous forfeiture" (id. at 437). While the
Court in Smiley made clear that civil litigants have no absolute right to assigned counsel, it
recognized that "[t]he courts have a broad discretionary power to assign counsel without
compensation in a proper case" (id. at 441; see also CPLR 1102). A "proper case" for the
discretionary appointment of counsel includes situations in which a litigant is faced with grievous
forfeiture or loss of a fundamental right (Wills v City of Troy, 258 AD2d 849 [1999], lv dismissed
93 NY2d 1000 [1999]; Morgenthau v Garcia, 148 Misc 2d 900, 903 [1990]). The Court does not
view the allegations made here as so compelling as to warrant the assignment of counsel.

Additionally, claimant's failure to serve the county attorney as required by CPLR 1101(c)
warrants denial of the relief requested (Sebastiano v State of New York, 92 AD2d 966 [1983]; Harris
v State of New York, 100 Misc 2d 1015 [1979]).